Tom Brady vs. NFL: 3 things to expect from mediation today

NFL Commissioner Roger Goodell and Tom Brady scrimmage off the field in mediation today in Manhattan federal court. (Photo: AP)

NFL Commissioner Roger Goodell and Tom Brady scrimmage off the field in mediation today in Manhattan federal court. (Photo: AP)

Tom Brady and the National Football League appear to be making only cosmetic strides towards settling.

Today is one of the 2 court ordered mediation sessions by Judge Richard M. Berman in the oft contentious lawsuit over deflated footballs in the 2015 AFC Championship Game, The Wells Report that investigated the matter afterward, the NFL’s discipline of the New England Patriots star quarterback as a result of The Wells Report, and the appeal presided over by NFL commissioner Roger Goodell.

Both sides were instructed to engage in “good faith settlement efforts” prior to arriving in Manhattan today. Here are 3 things to expect:

1. Both sides will present their settlement proposals before the judge.

A mediation is not an actual hearing on the merits of the case. It is a mechanism frequently used by judges to arrange for efficient use of court resources and get parties to settle their differences before the judge rules on the merits of the case.

The NFL will present its proposal for settlement and the reasons why they feel that particular proposal has been submitted in “good faith” and Tom Brady will do the same.

According to ESPN’s Chris Mortenson the NFL will not move forward with any settlement unless Brady accepts the findings of The Wells Report.

Brady, on the other hand is only willing to accept a fine but not suspension, and will not admit guilt.

At this time, the small movements by both sides was to be expected.

The judge will also ask each sides questions based on evidence submitted and proposals.

Judge Berman may issue strong words to encourage both sides to move forward toward settlement at the outset of mediation sessions.

2. Judge Berman will seek common ground directly with each side separately.

During mediation both parties adjourn to separate rooms after meeting together with both proposals at the table. It is not the judge’s job to offer particular terms of settlement, or “negotiate” for Tom Brady or the NFL.

That’s what each party’s lawyers are there for. The judge is there to be an impartial component of delivering various settlement offers back and forth between parties.

Judge Berman may have to reiterate his function is not to serve in the interests of either party, especially if matters get contentious and either side attempts to lobby accusations of the other side as not negotiating in good faith.

3. Parties adjourn until next mediation session.

If no final settlement has been reached, the NFL and the Tom Brady will be charged with making more progress than they have today. Judge Berman will ask for a proposals to be submitted at the start of August 19th’s mediation session which show each party has made attempt to move closer to the other side.

Judge Berman may request parties communicate during the week to advance settlement talks as well as stress public civility and not to attempt to fight out the case in the press.

Bottom Line

The NFL and Tom Brady have a short time between mediation sessions as well as the mutually requested conclusion of the case on September 4th. Both parties believe they have strong legal arguments on their side to win on the merits of the case.

With little movement so far, Judge Berman will continue to see a dog and pony show in his courtroom today and next week as both parties dance around the fringes of a settlement, just biding their time until a final ruling is issued.

Exavier B. Pope I, Esq. is an award winning attorney, on air legal analyst, media personality, and Fortune 500 speaker. Mr. Pope has over 200+ appearances on air, including: international television on BBC and Al Jazeera English; national television on Fox News Channel, HLN, NBC Nightly News, Al Jazeera America, WGN Morning News, Fox Business Channel, and Huff Post Live; Top 3 Local Media Markets on Fox, CBS, and NBC; international radio on BBC Radio; national radio on ESPN Radio, Clear Channel Radio, NBC Sports Radio; contributed digitally to CNBC, Huffington Post, Jet, and Black Enterprise; and has appeared in other media outlets nationally and internationally. Mr. Pope is represented by top media and literary agency RLR Associates. All opinions expressed are those solely of Mr. Pope.

© 2015, Exavier B. Pope I, Esq.

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